News and insights for post-acute care professionals

On April 25, 2019, the Office of Inspector General (OIG) released a 40-page report on the assessment of state programs conducted from 2013 to 2016.

“Background checks are an important safety measure that can help protect the 9 million beneficiaries who rely on long-term-care services each year for safe, dependable care. These checks can prevent individuals with disqualifying histories (e.g., convictions for patient abuse, patient neglect, and theft from patients) from being hired to care for beneficiaries. The National Background Check Program (Program) provides grants to States to develop systems to conduct background checks of State and Federal criminal history records for prospective long-term-care employees.”

If you’re not familiar with the requirements for background checks, here are some of the key details:

States must meet broad statutory and grant requirements, but they have some flexibility in how they meet each requirement. For example, States must define direct patient access employees, but they have flexibility in determining which types of prospective employees they include in their respective Programs.

States must require all prospective long-term-care employees to undergo background checks; however, the statute does not designate which entity—a State government agency or the prospective employer— should be responsible for making the final determination of ineligibility.

The required checks include the following: (1) a search of any databases and the abuse registries of all known States in which the prospective employee lived; (2) a check of State criminal history records; (3) a fingerprint-based check of Federal Bureau of Investigation (FBI) criminal history records and (4) a search of the records of any proceedings in the State that may contain disqualifying information about the prospective employee. Additionally, States must describe and test methods to reduce duplication of fingerprinting, including the development of “rap back” capability—a process whereby a State receives automatic notification of any criminal convictions that prospective employees receive after their initial background checks have been conducted. This process is known as continuous monitoring.

States are required to report to CMS their quarterly data on Program outcomes, such as the numbers of background checks they conducted and the numbers of checks that resulted in determinations of ineligibility.

Participating States must implement all required background checks for prospective employees among the following nine types of long-term-care facilities or providers:

States must ensure that background checks examine any databases that may contain information on an applicant’s history that could disqualify the applicant from employment. Disqualifying information includes certain Federal and State convictions or findings related to patient abuse or neglect, health care fraud, theft, offenses involving controlled substances, obstruction of an investigation and other related offenses. Additionally, States may specify other types of offenses that constitute disqualifying information such as child abuse, forgery, sexual abuse, terrorist threats, kidnapping, and drug trafficking as disqualifying offenses. States also have flexibility to determine which State databases and abuse registries they will search for disqualifying information.

The 10 States that had concluded their participation in the Program by 2016 varied as to the degree to which they achieved implementation of Program requirements. Seven of these 10 States implemented all or most of the selected requirements. Three States did not have the necessary authority through State legislation and could not fully implement background check programs.

Of the background checks that 8 of the 10 States conducted, nearly 80,000 resulted in determinations of ineligibility for prospective employees. The number of determinations of ineligibility and rates of ineligibility varied among the States (i.e., from less than 1 percent to 8 percent). None of the States reported a reduction in available workforce for long-term-care facilities or providers as a result of the Program.

OIG recommends that CMS take appropriate action to encourage participating States to obtain necessary authorities to fully implement Program requirements to better protect beneficiaries from potential harm. CMS stated that it concurred with our recommendation.